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A retired Texas Supreme Court chief justice discusses threats to judicial independence, partisan judicial elections, and public trust in the courts.
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Judicial Independence: The Cornerstone of America’s Democracy
Aug 31, 2026
Judicial independence was one of the core justifications for the American Revolution.
The Declaration of Independence assailed King George III, saying:
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
The framers, influenced by European political philosophers like Montesquieu and Harrington, thus gave judicial power to a separate and distinct branch of government, independent of both the legislative and executive branches.
After some fits and starts in a few places, by the mid-19th century the courts of every state had authority to decide the constitutionality of the other branches’ actions. And, despite imperfections and shortcomings, the independent American judiciary has an enviable record of protecting individual freedoms, minority interests, and property rights.
Our independent judiciary has been the feature of the American government most emulated by the world’s emerging democracies. Most countries have opted for a parliamentary form of government rather than separate legislative and executive branches, but the vast majority have created a judiciary that operates with at least some protection from governmental interference. As Chief Justice William Rehnquist was fond of saying, the judicial branch is a “crown jewel” of the American democratic experiment.
Why are retired state supreme court chief justices speaking out now, and what compels them to raise their voices?
It’s no secret that Americans, like citizens in many Western democracies, have in recent decades lost confidence in both their public and private institutions. That distrust and cynicism is particularly damaging to the courts, which depend entirely on public confidence for their practical as well as their moral authority. In recent years, public attention has focused on federal courts—as Congress has done less, and the Executive Branch has done more, than our framers intended. That imbalance has put extra pressure on the judiciary, resulting in frequent criticism from partisans of all persuasions. Most of this criticism merely exhibits a healthy exercise of free expression, but some of it has been malicious and misleading.
State courts have been subjected to their own assaults, some arising from purely local issues but others reflecting national initiatives. State courts have suffered the same loss of public trust as other institutions, but few national efforts have been dedicated to defending them. The nation’s former chief justices are uniquely situated to monitor these attacks and bring interstate resources to answer them when they are unjust or misguided.
How are state judiciaries uniquely suited to meet this moment, perhaps in ways the federal courts cannot?
Because over 90% of all lawsuits in America are handled by state rather than federal courts, most people’s direct experience with the judicial system will be with state judges. In these uncertain times, state judges have a heightened obligation to conduct themselves in a manner that gives no cause for just complaint.
Beyond that, since most state judges face some sort of popular election—partisan, nonpartisan, or retention—state judges have an obligation, not merely an opportunity, to explain and defend the judicial process to the public at large. And because state courts hear and resolve numerous federal law claims, and vice versa, the rule of law demands that both state and federal systems not only act, but also appear to act, in a fair, efficient, and principled manner.
What is the greatest threat facing the judiciary in each justice’s state?
The Texas Legislature traditionally micromanages the judicial branch more than most states—with laws or budget riders addressing jurisdiction, salary supplements, docket priorities, and work schedules in very discrete terms. Perhaps this is because Texas’s part-time, low-pay legislature attracts more lawyers than most states do.
The biggest challenge in Texas undoubtedly comes from the partisan judicial election by which all 2,000 Texas judges obtain or retain their offices. Every two years, many judges lose in their party primaries, often because of their perceived gender or ethnicity, not their performance on the bench. Even more, typically dozens, lose in the general election because the other party sweeps all the election contests in their district. Beyond that, voters and special interest groups have become far more insistent about knowing judges’ views on a wide array of issues since the U.S. Supreme Court struck down provisions of many states’ judicial conduct codes that forbade judicial candidates from answering such inquiries. If and when Texas becomes a “purple” state, its supreme court elections will inevitably become much noisier, nastier, and more expensive. As we have seen in Michigan, North Carolina, and Wisconsin, massive expenditures, most of it devoted to media blitzes by groups other than the candidates’ own campaigns, have further confused voters about the way courts actually consider and decide cases
What was the most impactful part of serving as chief justice?
Obviously, the Supreme Court of the nation’s second largest state decides many important cases, but much of the most satisfying work of a high court is administrative. During my tenure, the Court strengthened ethics rules for both lawyers and judges, reformed the attorney discipline system, expanded pro bono services for low-income Texans, implemented numerous technological innovations, and streamlined pretrial discovery and other court procedures. All these efforts have been substantially furthered by the Supreme Court since I left. And while Court initiatives are a collegial effort, chief justices enjoy more name recognition and a larger pulpit than that normally accorded to their colleagues.
What do they wish more citizens understood about the judicial process?
I wish more people understood that the “political” cases that make the news, while tremendously important, are a minuscule fraction of the matters our courts resolve. For the great mass of disputes, there is no Democratic or Republican answer, and no liberal or conservative outcomes. And in an era when the outcomes of more and more cases are governed by statutory provisions rather than judge-made common-law principles, the job of state courts is increasingly to apply the law as written to the facts presented to them.
Thus, the character, diligence, intelligence, and good judgment of a potential judge are far more important qualities than his or her political views. Voters in elective states like Texas have a herculean task in weighing these qualities among numerous candidates, sometimes dozens in any one county. But it is important that they do so.
Thomas R. Phillips, who practices law in Austin, is a former Chief Justice of the Supreme Court of Texas, where he served from 1988 to 2004. He is a member of Keep Our Republic's Alliance of Former Chief Justices, which advocates for the rule of law and judicial independence.
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An opinion essay traces America's cycle of welcoming immigrants and communities of color for labor, then excluding them once they gain power.
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THE POLITICS OF EXCLUSION: When Abuse of Power Pushes Communities Out of the American Story
Aug 31, 2026
The politics of exclusion is the deliberate use of power to push certain communities out of the American story through fear, cruelty, erasure, and unequal treatment. It is what happens when leaders abandon constitutional ideals and replace them with grievance, retaliation, and division.
The late John McCain warned that we weaken our greatness when we confuse patriotism with tribalism. Liz Cheney cautioned that no one should support a leader who uses fear and division to hold onto power. Adam Kinzinger called it authoritarianism. Mitt Romney said plainly, “He has caused fear and division.” Alexandria Ocasio-Cortez observed that “the cruelty is the point,” and the late John Lewis reminded us that “democracy is not a state; it is an act.” Together, these voices describe the elephant in the room. America is confronting a pattern bigger than corruption and bigger than authoritarian drift. It is the social, racial, and moral dimension of democratic erosion — lying, cheating, cruelty, intimidation, erasure, and exclusion masquerading as patriotism.
America has always lived under two sets of rules: the stated rules and the unstated rules. The stated rules are written in the Constitution — equality, liberty, justice, representation, and the promise that every person belongs. But people of color have always lived under a second set of rules: belonging is conditional, progress can trigger punishment, success can provoke resentment, safety is not guaranteed, and history can be erased when it becomes inconvenient. Now a third set of rules is emerging — the authoritarian rules. Divide people so they cannot unite. Erase history so children cannot learn. Intimidate communities so they cannot rise. Rewrite truth so no one can hold leaders accountable. These rules depend on fear, confusion, erasure, and the belief that some Americans are more American than others.
Trump has demonstrated these authoritarian rules repeatedly. Investigations report that he has used executive power to exclude immigrants, restrict who can enter the country, and expand enforcement in ways that disproportionately harm people of color. Analysts note that he frames certain immigrants as threats while welcoming others who serve his political or financial interests. This selective acceptance is a hallmark of authoritarian systems. Even members of his own party showed visible discomfort. When the late Senator Lindsey Graham defended the president’s falsehoods or cruelty, his body language told a different story — the hesitation in his eyes, the tension in his shoulders, the way he swallowed before speaking. Many say it looked as if he had surrendered his integrity to something he could not name.
Recent reports continue to document harsh treatment of immigrants in detention, including allegations of abuse, inadequate medical care, and prolonged confinement. Civil rights groups note that oversight remains inconsistent and many complaints still go unresolved. History shows that similar abuses occurred during slavery, where dehumanization was used as a tool of control. The tactics repeat: degrade, intimidate, silence, erase.
Sometimes history shapes behavior, and sometimes it shapes harm. Reports show that Donald Trump’s father, Fred Trump, was arrested at a 1927 KKK‑related event in Queens, and that the family’s housing practices later faced federal scrutiny for refusing to rent to Black tenants. Whether or not these events explain Donald Trump’s behavior toward people of color, they form part of a documented pattern — one that many communities recognize immediately. People like Trump do not want history known. He comes from a family of immigrants, yet works to erase the histories of others. They water down textbooks, restrict curriculum, and silence teachers because they do not want children to learn the truth — that America has a long record of using immigrant labor to build the nation and then pushing those same communities out once they begin to thrive.
History makes the pattern impossible to ignore. Chinese immigrants built the Transcontinental Railroad and were later barred by the Chinese Exclusion Act. Mexican laborers were brought into the United States to meet agricultural and industrial demand, only to be ousted when their labor was no longer politically convenient. The cycle repeated with the Immigration Act of 1924, which sharply restricted immigration from non‑European countries. Haitian families helped revitalize cities after natural disasters, only to see their federal Temporary Protected Status abruptly ended. The pattern is always the same: when the nation needs labor, it brings immigrants in. When those immigrants begin to succeed, build communities, and gain stability, they are pushed out. Demand creates welcome; progress triggers rejection. Immigrants strengthen the country, and when they begin to do well, they are ousted. This is the politics of exclusion.
The consequences fall hardest on people of color and immigrants. Many Black Americans say they are not asking for special treatment; they are asking for a fair chance. They have always been among America’s hardest workers, building the country in ways often overlooked. Yet many now feel pushed out, erased, or caught in the middle of political battles they did not create. A Black man in Georgia told me, “No matter how much Trump tries to destroy us and turn us against each other, America remains the shiny city on the hill. We love our neighbors no matter what shade or creed. We all belong here.” A Black woman in Florida shared, “My forefathers were still slaves when the Declaration of Independence was signed, but my ancestors fought that I might be free. They cannot erase my history.” A Native American man said, “They try to push us out, but we were here first.” A Latina woman said she no longer felt part of the country — not because of her own choices, but because of the president’s words and ICE’s actions.
Across generations, people of color are a foundational part of America’s history. They built this country, defended it, fed it, taught it, healed it, and sustained it. They must remember their contributions and their worth. They must not allow anyone — not even a president who does not understand the value of diversity — to make them feel lesser. Healing the divide begins with truth and courage. Empathy is the first step. People must listen to one another’s lived experiences across racial lines. Storytelling breaks stereotypes and restores belonging. The country must confront systemic racism directly. Racism is embedded in education, housing, employment, and policing. Removing overtly racist laws is not enough. We must strengthen civil rights protections, expand economic opportunity, and ensure equal access to justice.
Communities need safe spaces to talk — schools, workplaces, churches, and civic groups where people can discuss race, privilege, and bias without fear. Grassroots engagement is essential. Cross‑cultural mentorship programs, joint civic projects, interfaith councils, and neighborhood coalitions build trust and shared purpose. Institutions must be held accountable. Independent oversight bodies can ensure policies serve the public interest, not political convenience. Education must tell the truth. Curricula should reflect diverse histories and perspectives. Representation matters in government, media, business, and community leadership. Economic inequality must be addressed. Investment in underserved communities, fair wages, and access to quality education reduce resentment and build shared prosperity. And finally, the people must use the most powerful tool they have — the vote. Guardrails exist — oversight, accountability, and when necessary, impeachment — but none of them work unless the people insist on them.
America’s story is not defined by cruelty, division, or exclusion. It is defined by the people who refuse to let those forces win. The people who rise. The people who remember. The people who stand. Democracy survives when we show up — and we must show up now.
Carolyn Goode is a retired educational leader and technical writer whose work centers on civic responsibility and democratic engagement.
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Roberto “Bear” Guerra/ProPublica. Source image: Getty Images
Senators Criticize Trump Administration’s Demands to Access Health Data as a Condition for Lifesaving Aid
Aug 31, 2026
What Happened: Citing reporting by ProPublica, eight Democratic U.S. senators have criticized the Trump administration’s demands to access the health data of millions of people as a condition of giving lifesaving aid to other countries. In a letter to Secretary of State Marco Rubio, the senators, including minority leader Chuck Schumer, said the U.S. demands were “unprecedented and at odds with U.S. policy concerning the data of American citizens.”
The inquiry into the administration’s approach to foreign health data referred to a ProPublica story published in June about agreements the U.S. struck with African countries — and the risks they posed to people there. Experts told ProPublica that the deals are vague and lack language used in most data-sharing agreements to adequately limit what information is collected and how it can be used. As a result, they said, there is an increased risk that individuals’ personal data could be exposed, misused or commercialized without their consent.
The senators — who include Tim Kaine of Virginia; Chris Van Hollen of Maryland; Brian Schatz of Hawaii; Amy Klobuchar of Minnesota; Christopher Coons of Delaware; Jeff Merkley of Oregon and Raphael Warnock of Georgia, who led the effort — requested a briefing on the healthcare agreements’ data requirements. They also asked Rubio to respond in writing to a list of questions by the end of August.
What They Said: In the letter, which was sent last week, the senators expressed concern that the requirement to access foreign health data might reverberate beyond the countries where the aid agreements were struck and “set international precedents that ultimately harm Americans.” They noted that the demands for data appear to be at odds with the Trump administration’s National Cyber Strategy, which emphasizes the right to privacy for Americans and their data.
“These new demands set an alarming precedent that is seemingly contrary to the Administration’s longstanding support for the privacy of U.S. citizens’ data,” they wrote.
The senators also laid out the details of a data-sharing agreement between the U.S. and Uganda that were first reported by ProPublica. The deal demanded that Uganda provide the U.S. — and its contractors — with logins “or other secure access mechanisms” to directly enter the nation’s health data systems.
“While global health programs have historically included data sharing components,” the senators wrote, “they have never required direct access to privileged electronic systems for U.S. government representatives.”
The letter ends with more than a dozen questions for Rubio, including why the State Department has not made the health care agreements public, as federal law requires, and whether any of the data will be shared with “U.S.-based third parties for any commercial purpose, including to train any artificial intelligence models.”
The senators also asked what privacy rights foreign citizens will have over data that is transferred to the U.S. and how those rights will be enforced in the case of a data breach or another unethical use of their personal information.
Background: After the Trump administration dismantled the U.S. Agency for International Development and drastically reduced funding for international health work done by the Centers for Disease Control and Prevention, Congress required the executive branch to continue providing foreign aid. The State Department has since faced the challenge of finding new ways to get the funding to countries, ensure that it was being spent wisely and address potential pandemics. The task has been especially challenging because the administration cut ties with most of the international partners and fired staff the government had previously relied on to carry out this complex work.
In the past, PEPFAR, the U.S. program that provides aid for treating and preventing HIV around the world, built its own systems to handle anonymized data, separate from foreign government health records. In contrast, the Ugandan agreement provides the U.S. with direct access to the government’s own health data systems.
Through separate agreements, the U.S. has also arranged for countries to provide it with specimens of pathogens that could cause pandemics, along with related information.
The effort to establish these new aid arrangements was led by Brad Smith, an entrepreneur who founded three healthcare companies, one of which sold for a reported $2.7 billion. Before joining the State Department, Smith led the government efficiency panel that would become the Department of Government Efficiency and oversaw some $67 billion in cuts to the Department of Health and Human Services.
The U.S. agreement with Uganda provides up to $1.7 billion in aid for HIV, tuberculosis and malaria, among other diseases. As a condition, the deal calls for the sharing of aggregated data with all personally identifiable information removed and specifies that the information should be used for delivering and auditing healthcare services. But experts told ProPublica that it is possible to reverse-engineer data that has been anonymized.
The shift in the approach to health data is part of the America First Global Health Strategy, which is intended to make America “more prosperous” and “promote American health innovations.” Rubio explained in September that under this new strategy, aid will be given “in a way that directly benefits the American people and directly promotes our national interest.”
Why It Matters: Privacy experts say that, if health data is mishandled under the agreements, it could have serious consequences. Revealing healthcare histories, including whether someone has had an abortion, a mental health condition, substance-use treatment or a sexually transmitted disease can be devastating anywhere. In Africa, research has shown it can lead to discrimination and violence.
In the age of artificial intelligence, health data has become especially valuable. But the agreements reviewed by ProPublica provide no guarantee that Africans subject to them will have a say in how their data is used or whether they would receive any potential financial benefits.
Response: The State Department declined to answer specific questions about the senators’ letter, saying that it does not respond to questions about congressional correspondence. In a statement sent to ProPublica, a State Department spokesperson defended the data requirements in the health agreements.
“Neither the U.S. government nor any private American companies receive or review any personally identifiable information (PII) under these data sharing agreements,” the statement said, going on to note that the new deals “share only the same kinds of aggregated, de-identified data that has been shared and used for years in the fight against HIV/AIDS, malaria, tuberculosis, and other diseases. All data sharing is consistent with each country’s laws and approvals.” The spokesperson also said no country has been coerced to sign the agreements with the U.S.
Senators Criticize Trump Administration’s Demands to Access Health Data as a Condition for Lifesaving Aid was originally published by ProPublica and is republished with permission.
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Are States and Localities Required to Cooperate with ICE?
Aug 31, 2026
Polls show a majority of Americans disapprove of how Immigration and Customs Enforcement (ICE) is doing its job, with outrage stoked by a surge in immigration arrests across the country and multiple killings by federal immigration officials. In many places, residents are against their state and local officials cooperating with immigration authorities. And many local law enforcement leaders argue that cooperating with federal immigration enforcement operations undermines public safety by taking resources away from local priorities and eroding communities’ trust in law enforcement.
Trump administration officials have repeatedly argued that states and localities are legally obligated to cooperate with federal immigration enforcement efforts. They have also warned that state and local laws limiting cooperation with ICE will be met with harsh crackdowns.
But by and large, states and localities have the authority to decide whether and how their officials cooperate with federal immigration enforcement. The legal questions around these decisions are explored below.
Does federal law require states and localities to cooperate with ICE?
No federal law requires states and localities to cooperate with ICE. Instead, state law often governs the extent of cooperation.
But where state law is silent, state and local officials have discretion to manage law enforcement operations to meet their communities’ needs. That means they may decide whether to collect information about immigration status; how much information, if any, to share with ICE; and whether to comply with ICE requests to hold detained people until federal agents can transfer them into federal custody. Any jurisdictions that wish to cooperate can enter into agreements authorizing their officers to carry out all manner of immigration enforcement activities.
Can the federal government force states and localities to adopt immigration cooperation policies?
No. In our federal system, federal and state governments each have independent sources of authority and their own power to make and enforce laws within their spheres. The Constitution’s Supremacy Clause says that valid federal law is supreme over conflicting state law. But the federal government’s power is limited: The 10th Amendment confirms that the states (and the people) hold all powers the Constitution does not explicitly grant to the federal government. This reservation of power has been interpreted as banning federal “commandeering” of state policymaking. In other words, the federal government “can’t tell a state what its policy on a particular topic will be,” Georgetown University Law Professor Steve Vladeck has explained. It also “can’t require local or state law enforcement officers to enforce federal law.”
This means that, like everyone else, state and local officials may not violate federal law, and there are some general federal laws that may be applied to state and local actions in the immigration context. For example, federal law prohibits obstructing federal proceedings. A Wisconsin judge was recently convicted of obstruction after instructing the target of an ICE search to exit through a restricted courthouse door. But no federal law requires state or local cooperation with ICE or other federal officials. Any such law would almost certainly violate the 10th Amendment.
One immigration-specific federal law purports to govern state and local policymaking: Section 1373 of Title 8 of the U.S. Code prohibits states and localities from enacting laws that limit their employees from sharing immigration status with the Department of Homeland Security (DHS), which houses ICE. But Section 1373’s scope is very narrow; its restriction on laws that would limit sharing one type of information imposes no requirement that states or localities share information or otherwise cooperate with immigration enforcement.
How have courts ruled in disputes over local cooperation with federal immigration enforcement?
Long cited by conservatives in support of arguments to limit the power of the federal government, the U.S. Supreme Court has relied on the 10th Amendment to strike down federal environmental and gun control laws. The U.S. Supreme Court has yet to definitely decide how the 10th Amendment applies in the debate over state and local cooperation with federal immigration enforcement.
Several federal lower courts have held that Section 1373, the statute barring state and local laws that limit sharing immigration statuses with ICE, violates the 10th Amendment. Section 1373 “regulate[s] state and local governmental entities and officials, which is fatal to [its] constitutionality,” a federal judge in Pennsylvania said in 2018.
While the constitutionality of Section 1373 has not definitively been resolved, almost all federal appellate courts agree on one point: The federal government may not condition federal funds on compliance with Section 1373. President Trump’s executive order doing just that during his first administration was struck down by four of the five circuit courts that considered the issue. The administration lacked the statutory authority to impose immigration-related conditions on the grants in question, the courts said. Only the U.S. Court of Appeals for the Second Circuit read the grant-making statute to authorize that constraint.
The federal government has also filed numerous lawsuits challenging state and local laws limiting cooperation with federal immigration enforcement. These cases are ongoing, but most initial rulings have sided with the state and local governments invoking the 10th Amendment to justify their policies. Last month, a federal judge rejected the administration’s challenge to Minnesota’s “sanctuary” policies, confirming that “refusing to help” ICE is a state’s prerogative.
States and localities are also making claims under the 10th Amendment in affirmative litigation challenging federal immigration enforcement measures. After ICE agents in Minneapolis killed Renee Good and Alexander Pretti and gravely injured Alberto Castañeda Mondragón, Minnesota and the cities of Minneapolis and St. Paul filed a lawsuit arguing that the administration’s enforcement surge was an attempt to coerce them into adopting federal policy priorities that would commandeer state and local law enforcement resources. Citing the unprecedented nature of the claims raised in the case, a federal judge declined to temporarily block the ICE deployment, though she emphasized that her order did not signal the federal government would ultimately prevail in that lawsuit.
How much information must states and localities share with ICE?
Beyond Section 1373’s narrow limitation, states and localities have considerable flexibility to formulate their own policies around law enforcement cooperation with ICE, including information collecting and sharing. Some jurisdictions, such as Oregon and Illinois, have adopted laws that prevent law enforcement agencies from asking about or collecting information about immigration status. Supporters say the laws build community trust necessary for public safety and allow local police to use their resources to stop violent crime rather than to enforce federal immigration law.
States and localities can also decide when and whether to share information with federal agencies. As a general practice, local police routinely share basic information with the federal government when anyone, regardless of citizenship status, is arrested, even though they are not legally required to do so. This information can be accessed by DHS for use in immigration enforcement.
This information-sharing practice began after the September 11 attacks through Secure Communities, a program devised to prioritize the removal of individuals already in the custody of criminal law enforcement agencies. While the program no longer exists by that name, the basic structure remains: State and local law enforcement agencies, which lack comprehensive biometric databases, send fingerprints to the FBI, which checks them against its extensive Next Generation Information system for identity and criminal history.
In a process that does not involve localities, the FBI passes those fingerprints and additional identifying information to DHS. The FBI-to-DHS system, known as interoperability, provides ICE with a wealth of information about immigrants — including dates and places of birth, photographs, and immigration status — even in so-called sanctuary jurisdictions. Other federal–state cooperation structures, like fusion centers, have also given DHS access to troves of state and local law enforcement data.
Are states and localities required to comply with ICE requests related to people in their custody?
No. States and localities have broad latitude to decide whether to comply with requests from ICE to notify the agency before releasing someone from state or local custody or to hold the person for up to two additional days so that federal officials can take custody. These requests are known as immigration detainers. Historically, most people detained by ICE have been taken directly from local jails, often through the use of immigration detainers. But prison or jail officials who decline to honor detainer requests have not violated federal law.
Federal and state courts have repeatedly ruled that local law enforcement need not follow detainer requests absent a state law requiring them to do so. For example, in Galarza v. Szalczyk, the U.S. Court of Appeals for the Third Circuit held that “immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal.” This conclusion, the court said, was based on “settled constitutional law,” including the 10th Amendment’s anticommandeering principles. “Essentially, the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials,” the court explained.
Immigration detainers also raise concerns under the Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Holding people in custody beyond the terms of their sentences amounts to a new seizure, which generally requires a warrant based on probable cause, issued by a neutral adjudicator. In 2013, U.S. citizen Gerardo Gonzalez, representing a class of individuals subject to immigration detainers, sued ICE for Fourth Amendment violations after he was held by the Los Angeles Sheriff’s Department pursuant to an immigration detainer issued on the faulty premise that he had entered the country illegally. In 2024, DHS agreed to a settlement requiring a neutral probable cause review for all detainers, performed by federal personnel “housed within DHS,” “with a strong preference” that reviewers have relevant legal experience, “preferably as an immigration judge, appellate immigration judge, or administrative law judge.”
Still, due in part to continued concerns over the constitutionality of the practice, some states — including California, Colorado, Connecticut, Illinois, and Oregon — have adopted laws forbidding unconditional compliance with ICE detainers. State courts in Massachusetts and New York, meanwhile, have barred local law enforcement from complying with detainers, interpreting state law to prohibit such cooperation. Many of these statutes include exceptions for individuals convicted of serious or violent crimes. California, for example, bars keeping immigrants in custody beyond the term of their sentence on a civil detainer request from ICE, but it requires corrections facilities to work with DHS to transfer custody of undocumented immigrants convicted of felonies. Indeed, a recent New York Times analysis found that even states that have bans on cooperation with ICE regularly turn over people convicted of serious crimes to the agency.
On the other hand, some states — including Arkansas, Florida, Georgia, Louisiana, North Carolina, Tennessee, and Texas — have enacted laws requiring local law enforcement to comply with ICE detainer requests. Where state law does not explicitly speak to compliance with immigration detainers, local jurisdictions may decide whether they will cooperate.
What is a 287(g) agreement?
State and local governments can decide to enter into 287(g) agreements — named for the section of the federal immigration law that authorizes them — to delegate various immigration enforcement duties to state and local officials. Federal law is clear, however, that no state or local jurisdiction is required to enter such an agreement.
Some states, including Georgia and Tennessee, have passed laws requiring localities to enter into 287(g) agreements. Other states, such as Illinois and New York, have passed laws forbidding them. Where state law is silent, the decision about whether to enter into a 287(g) agreement rests with local officials.
There are three kinds of 287(g) agreements, categorized based on the level of support a locality provides. The warrant service officer model provides the lowest level of support, giving local police only the authority to issue administrative warrants to noncitizens while they are still in local jails, eliminating the need for DHS to issue detainers. The jail enforcement model authorizes state and local police to perform the full range of immigration enforcement actions, such as interrogating people to determine their immigration status or facilitating their transfer to ICE custody, but only while they are working in their local jails. Finally, nearly 60 percent of 287(g) agreements follow the task force model, fully deputizing local law enforcement to take on all federal immigration officers’ duties, including making arrests, conducting warrantless searches in public places, and issuing detainers.
In 2025, Congress authorized unprecedented reimbursements to local law enforcement agencies that enter task force model 287(g) agreements. Not only does the federal government pay the salaries, benefits, and overtime of state and local 287(g) officers; it also promises “quarterly monetary performance awards” to locate undocumented immigrants, although the exact bases for the bonuses are not specified. Florida’s highway patrol, for example, received $13.6 million last year.
Empirical evidence suggests that these incentives lead to increased racial profiling and civil rights violations. A recent ACLU report described hundreds of incidents of local officers pulling over and arresting people they thought were undocumented, apparently based on appearance, many of which were likely efforts to fulfill the terms of their 287(g) agreements. In May 2025, for example, Florida highway patrol and federal border patrol agents stopped a car carrying people who appeared Latino, and a video shows the officers dragging a passenger by the neck, tasing him, arresting a teenage citizen, and laughing about a $30,000 bonus, presumably referring to federal incentives.
The incentives have also increased the number of 287(g) agreements in place across the country: There are now 2,315, up from 45 in 2019 during Trump’s first term. Each 287(g) agreement adds personnel to supplement ICE’s roughly 20,000 officials, making the program a significant force multiplier for the agency. Even so, with more than 17,000 local law enforcement agencies in the country, the vast majority of jurisdictions have not entered into one.
Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel and manager in the Judiciary Program at the Brennan Center for Justice.
Margy O’Herron is a senior fellow in the Brennan Center’s Liberty and National Security Program.
Samson Tu is a student at NYU Law School. He previously participated in the Brennan Center’s Public Policy Advocacy Clinic.
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